Two men are fighting.  One pushes a pregnant woman.  She miscarries, without other misfortune.  The one responsible is then fined according to what the woman's husband decides...[adapted, Exodus 21:22]   This odd scenario is the Biblical basis for all of later Jewish legal understanding about abortion.

On Sunday, Kathryn and I and maybe a million other women will be marching in Washington to express our deep concern about the many issues affecting women's health and lives, but especially to say that the right to an abortion in the United States must not be taken away.  It seems an apt time to say some things about Judaism and abortion.  So, this scene from the book of Exodus.

Later Jewish understanding develops along two lines, and essentially all commentators follow one of those two lines.  First, based on the scene I read and a Mishnaic text, there develops an understanding of what a human is and when one becomes a human, called nefesh in Hebrew, one of the words for soul.   As Rachel Biale, author of Women and Jewish Law, notes, "The woman is a living person, a nefesh, and anyone who harms her body or kills her must pay in kind.  The fetus is not a person in this sense.  Destroying it through causing an abortion is not a capital crime and carries no capital punishment."[page 220]

In Mishnah Oholot, we find a description of what we know as late-term abortion or, called by its opponents, partial birth abortion.  But here we learn that until the head or majority of its body emerges from the womb, it is not considered a person, and its life is considered inferior to the mother's life.   There are some Talmudic authorities that consider a fetus a potential person and see killing it as similar to murder.  But in general, the mother's life takes precedence, and some later authorities permit abortion even in non-life-threatening circumstances.

Then the Rambam, Maimonides, weighed in.  He looked back at the Mishnah text about late term abortion and said it was justified, NOT because the fetus was not yet a nefesh, a person, BUT because when it endangered the woman's life the fetus might be seen as a pursuer and a pursuer who threatens one's life may be killed in self-defense. The only problem is that a pursuer is also fully a person.  And much of the commentary that comes after Maimonides focuses on the fetus as pursuer, rather than on the fetus as non-nefesh.   Thankfully, some authorities still see the fetus as a non-person and therefore are able to justify abortion for many ways in which a woman's life may be in danger.

This is probably enough for tonight on the legal aspects of the question.  So let me return to the scenario with which we began, because I want to think about that pregnant woman.  I want to think about her because I think that in all our attention to legal details, American or Jewish, we too often forget that we are talking about real women with real pregnancies that cause them distress for many reasons.

If we look at the original scene in this light, I have a lot of questions:  Who are these three people?  Why are the men fighting?   Did one of them get the woman pregnant?  Is one her lover and the other her husband?  Is one her brother and the other his friend?  Is one her father and the other her brother?   Does she have children?  How did she get pregnant?  Is she happy about it, or nervous, or angry?  Why is she standing near the men fighting?  Does she get into the middle of the fight deliberately, in an effort to abort, or is she just a bystander and the fight gets rowdy?  How do the men push her?  On purpose?  By accident?  What in the world is going on?

The word for pushing, updbu, is unusual. Since it is unusual, Rashi feels the need to explain that it means both pushing and hitting, and he shows us several other places in the Bible where it is used, all having something to do with striking or stumbling on a rock.   But when we look closer at those texts, we also see their contexts, and perhaps Rashi's underlying message. All his examples of the use of this word have to do with God's protection.  Psalm 91, for example, tells us "Because you took the Eternal as your haven, no harm will befall you...God will order angels to guard you wherever you go.  They will carry you in their hands lest you hurt your foot on a stone." [Ps 91:9-11]  The word in question here is "hurt,"' as in "hurt your foot."  That is what connects to the woman who is pushed, same word.  Maybe he meant to say that her being pushed was only as injurious as hurting your foot on a stone.  But see the world of protection and security that opens up through that word.

We have to be God's angels here, and provide some of that protection and security for a woman today who chooses abortion.  We still have to work to ensure that she is able to choose it.  But I think we also want to bring her choice out of the shadows, the place outside the camp.  We need to develop some set of recognizable stages, perhaps, or status changes, for the woman who decides on and then has an abortion.  When someone dies, we Jews have a clear set of stages that are not exact for each mourner, but come pretty close.  But when someone has an abortion, we may not want to know her sadness, her anger, her fear.  Do we ask if someone wants to announce her abortion during our time of sharing joys and sorrows in services?    Do we create a ritual for this important life passage?  Do we talk to her months or years later about her thoughts, her grief for what might have been, her joy at having made the right decision, her feeling of being alone?

Kathryn went to Japan last year and while there she visited one of many temples that has a statue of Jizo, a bodhisattva, patron of women, children, and travelers between this life and whatever comes next.  Women bring a flat stone, on which they may or may not draw a face; on it they place a bib, and put it next to the statue, commemorating abortions, miscarriages, and deaths of children.

This would not be the Jewish way, statues, etc.  But to have a way to remember and be comforted, well, that should be our way.  Just because we are part of a tradition that doesn't necessarily see a fetus as a person doesn't mean we can't recognize that a woman who has an abortion suffers a loss.  She may be delighted, or hopeful, or relieved, but for many that feeling of loss is also clear and long-lasting.

As a woman says in a ritual created by Rabbi Leila Gal Berner, "It is the blessing and the curse of being human that we have the capacity to make choices.  Sometimes the choices can make our lives rich and beautiful.  Sometimes the choices are filled with pain, or it feels as though we have no choice at all. Nothing can make the ending of a pregnancy easy.  We affirm you in your painful and difficult choice. "

In this ritual, those who gather share the woman's pain, allow her to affirm her self, help her acknowledge surviving and being thankful, and support her in seeking healing.